DONOVAN, James M.
Culture and the courts in France : the plaidoirie sentimentale in the nineteenth and early twentieth centuries / James M. Donovan
Law and History Review, v.35 n.3 (August 2017), p.789-828HISTÓRIA DO DIREITO / França, JULGAMENTO, JÚRI, RETÓRICAAt the beginning of the twentieth century, Vital Mareille—a champion of the plaidoirie sentimentale—tried to explain the reasons for its rise in France and its continued popularity into his own era. He defined it in the following terms: “The plaidoirie [defense summation] sentimentale is, precisely, that which seeks to move; one can say: that which comes from the heart of the attorney, to address that of the judges.” The plaidoirie sentimentale had existed in France before 1800, but it entered its golden age in the nineteenth century, and became a specialized form of judicial oratory. It developed chiefly in response to the introduction of trial by jury in 1791. Attorneys had to craft a rhetorical approach that would appeal to these “simple citizens,” and for this, sentimental eloquence was ideal; however, no recent scholar has attempted a systematic study of this important form of courtroom rhetoric from its origins in the early nineteenth century to its gradual replacement after 1890 or thereabouts by a more fact-based, “positivist” approach. This is unfortunate, because the history of the plaidoirie sentimentale reveals much. It includes juridical issues such as how the rhetorical practices of magistrates themselves contributed to the affective nature of French jury trial and the impact of the abolition in 1881 the résumé (summing up),which had been the judge's one means of countering the effect on a jury of an eloquent defense summation. It also reveals important changes in the attitudes of judges and jurors toward male mistreatment of women and the sexual “double standard” from the middle of the nineteenth century on and of how attorneys of the era drew on both the “new” emotion of sympathy and the “old” one of honor to persuade jurors to acquit. This adds to the evidence that emotions have a “history.”